Bouloute v. Carrillo , 2024 IL App (1st) 220454-U ( 2024 )

2024 IL App (1st) 220454-UNo. 1-22-0454
Third Division
March 13, 2024
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
)
WILLIAM BOULOUTE, )
) Appeal from the Circuit Court
Plaintiff-Appellee, ) of Cook County.
)
v. ) No. 2020 L 012349
)
MALINA CARRILLO, as Personal Representative of the ) The Honorable
Estate of Collin B. Swithin, ) Moira S. Johnson,
) Judge Presiding.
Defendant-Appellant. )
)
______________________________________________________________________________
PRESIDING JUSTICE REYES delivered the judgment of the court.
Justices D.B. Walker and Van Tine concurred in the judgment.
ORDER
¶1 Held: The question certified by the circuit court is answered in the negative, as a
plaintiff’s counsel’s legal secretary cannot be appointed as the “personal
representative” of a deceased defendant’s estate for purposes of section 13-209(c)
of the Code of Civil Procedure (735 ILCS 5/13-209(c) (West 2020)) where no
petition for letters of office has been issued on behalf of the decedent.
¶2 In December 2018, plaintiff William Bouloute and decedent Collin Swithin were involved
in a motor vehicle accident; nearly two years later, shortly before the expiration of the statute
of limitations, plaintiff filed suit against decedent, alleging that decedent’s negligence caused
No. 1-22-0454
the accident. At the time of filing the lawsuit, plaintiff was unaware that decedent had died in
July 2019. Upon discovering decedent’s death, plaintiff amended his complaint, naming
Malina Carrillo, his attorney’s legal secretary, as “personal representative” of decedent’s
estate. Through counsel, Carrillo filed a motion to dismiss the complaint pursuant to section
2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2020)), claiming that
she was not an appropriate “personal representative” of the estate. The circuit court denied
Carrillo’s motion to dismiss, but granted her request to certify a question concerning the matter
for interlocutory appeal under Illinois Supreme Court Rule 308 (eff. Oct. 1, 2019). We granted
Carrillo’s petition for leave to appeal and, for the reasons that follow, we now answer the
certified question in the negative.
¶3 BACKGROUND
¶4 In December 2018, plaintiff and decedent were both driving on the interstate in Illinois
when decedent allegedly made an improper lane change, causing a collision with plaintiff’s
vehicle. At the time, decedent was a resident of Michigan.
¶5 In November 2020, plaintiff filed a two-count complaint against decedent and the company
which owned the vehicle decedent was driving, 1 alleging that decedent was negligently
operating his vehicle at the time of the accident. As decedent was a nonresident, plaintiff served
decedent with process through the Illinois Secretary of State.
¶6 After serving decedent, and after the expiration of the applicable statute of limitations,
plaintiff learned that decedent had died in July 2019. Plaintiff’s counsel researched the matter,
and discovered that no personal representative had been appointed and no letters of office had
1
The vehicle owner was subsequently dismissed from the litigation and is not a party to the
instant appeal.
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been issued on decedent’s behalf in Michigan. Plaintiff then filed a motion in the circuit court
to spread the death of record and to appoint Carrillo “as Personal Representative of the Estate
of COLLIN B. SWITHIN, pursuant to 735 ILCS 5/13-209(c)(4) [(West 2020)],” which was
granted.
¶7 In March 2021, plaintiff filed an amended complaint, substituting Carrillo, as “personal
representative” of decedent’s estate, as the defendant. Defendant’s counsel2 filed an
appearance and a motion to dismiss pursuant to section 2-619 of the Code, claiming that
Carrillo was not eligible to serve as a “personal representative” of the estate. Counsel argued
that section 13-209(c) of the Code (735 ILCS 5/13-209(c) (West 2020)) required the naming
of a “personal representative” in circumstances where the decedent’s death was not known to
the plaintiff prior to the expiration of the statute of limitations, and that the Illinois Supreme
Court had explained that a “personal representative” under the statute referred to someone
appointed pursuant to a petition for letters of office. As Carrillo was not appointed pursuant to
a petition for letters of office, counsel contended that she was not eligible to serve as a
“personal representative.”
¶8 The circuit court denied defendant’s motion to dismiss, but instructed that the parties
should either file a motion to certify a question concerning the matter under Rule 308 or “advise
whether a substitute ‘personal representative’ will be appointed for defendant.” Defendant filed
a motion to certify a question for appeal under Rule 308, and the circuit court ultimately
certified the following question:
2
While Carrillo was technically the named defendant, an appearance was filed by an attorney
who appears to have been retained by decedent’s family. As this attorney challenged Carrillo’s ability to
serve as “personal representative” of decedent’s estate, we refer to him as “defendant’s” counsel, not
“Carrillo’s” counsel to avoid confusion.
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“Whether Plaintiff can name his legal secretary, Malina Carrillo, as the ‘personal
representative’ of the Estate of Collin Swithin under 735 ILCS 5/13-209(c) to represent
the estate of the decedent?”
¶9 We granted defendant’s petition for leave to appeal, and this appeal follows.
¶ 10 ANALYSIS
¶ 11 Illinois Supreme Court Rule 308 (eff. Oct. 1, 2019) provides a remedy of permissive appeal
from interlocutory orders where the circuit court has deemed that they involve a question of
law as to which there is substantial ground for difference of opinion and where an immediate
appeal from the order may materially advance the ultimate termination of the litigation. We
apply a de novo standard of review to legal questions presented in an interlocutory appeal
brought pursuant to Rule 308. Simmons v. Homatas, 236 Ill. 2d 459, 466 (2010). De novo
consideration means we perform the same analysis that a trial judge would perform. Khan v.
BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
¶ 12 On appeal, we are asked to interpret the language of section 13-209(c) in order to determine
whether Carrillo was an appropriate “personal representative” under that statute. As an initial
matter, we note that the applicable law with respect to this issue has evolved during the
pendency of the instant appeal. We granted defendant’s petition for leave to appeal in April
2022. During the briefing process, a petition for leave to appeal was filed, and ultimately
granted, in Lichter v. Carroll, 2022 IL App (1st) 200828, a case which similarly involved the
interpretation of section 13-209. Upon the granting of the petition for leave to appeal in Lichter,
the parties in the instant appeal filed an agreed motion for a stay, which we granted. The
supreme court issued an opinion in Lichter v. Carroll, 2023 IL 128468, on October 26, 2023.
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We subsequently lifted the stay in January 2024, and now consider the matter in light of the
supreme court’s recent decision. 3
¶ 13 Under the common law, “a dead person is a nonexistent entity and cannot be a party to a
suit.” Relf v. Shateyeva, 2013 IL 114925, ¶ 22. If an individual is deceased when an action is
brought, the proceedings do not invoke the circuit court’s jurisdiction and “any judgment
entered in the case will be a nullity.” Id. Thus, where a party dies, the action remains viable
only if timely substitution of another party operates to preserve the cause of action. See id.¶ 14 Section 13-209 of the Code, entitled “Death of party,” addresses situations in which one of
the parties to an action dies before the applicable limitations period has expired. Section 13-
209 is divided into three subsections: subsection (a), which is not at issue here, governs when
and how a case may proceed where the deceased party is the plaintiff, while subsections (b)
and (c) concern deceased defendants. See 735 ILCS 5/13-209 (West 2020). Subsection (b)
generally applies to cases in which a defendant dies before the expiration of the statute of
limitations, while subsection (c) specifically concerns the situation in which a plaintiff has
unknowingly commenced an action against an already-deceased defendant and discovers the
death only after the expiration of the statute of limitations. See id. §§ 13-209(b), (c). Our
supreme court has recently held that subsections (b) and (c) are not mutually exclusive, and
both may apply in certain circumstances. 4 See Lichter, 2023 IL 128468, ¶ 22 (finding that
3
We note that we did not order supplemental briefing on the impact of the Lichter decision, and
none was requested by the parties. The parties, however, both discussed the appellate decision in Lichter
in their briefs, and the supreme court ultimately affirmed the appellate court’s judgment based on similar
reasoning.
4
We note that, in Relf, a unanimous supreme court found that the provisions of subsection (b)
“presuppose that the plaintiff is aware of the defendant’s death at the time he or she commences the
action,” and that “[a] separate set of requirements,” namely, subsection (c), apply where the defendant’s
death is not known to the plaintiff prior to the expiration of the statute of limitations and the plaintiff
commences the action against the deceased defendant directly. Relf, 2013 IL 114925, ¶ 27; see also id. ¶
68 (Kilbride, C.J., dissenting) (“I agree with the majority that ‘[t]he provisions of section 13-209(b)
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No. 1-22-0454
“either option is available to the plaintiff for her choosing and one subsection does not preclude
the use of the other”). The parties in the instant appeal, however, agree that section 13-209(c)
is the applicable statutory subsection, and the certified question focuses exclusively on that
subsection, so we confine our analysis to consideration of section 13-209(c).
¶ 15 Section 13-209(c) of the Code provides that, if a plaintiff commences an action against a
deceased person whose death is unknown to the plaintiff prior to the expiration of the statute
of limitations, and the cause of action survives and is not otherwise barred, “the action may be
commenced against the deceased person’s personal representative” if the plaintiff diligently
moves the court for leave to file an amended complaint “substituting the personal
representative as defendant” upon learning of the death (735 ILCS 5/13-209(c)(1) (West
2020)) and the plaintiff diligently serves process “upon the personal representative” (id. § 13-
209(c)(2)). Section 13-209(c) further provides that, “[i]f process is served more than 6 months
after the issuance of letters of office, liability of the estate is limited as to recovery to the extent
the estate is protected by liability insurance” (id. § 13-209(c)(3)) and “[i]n no event can a party
commence an action under this subsection (c) unless a personal representative is appointed and
an amended complaint is filed within 2 years of the time limited for the commencement of the
original action” (id. § 13-209(c)(4)).
presuppose that the plaintiff is aware of the defendant’s death at the time he or she commences the
action,’ and is, therefore, not applicable when the defendant’s death is unknown to the plaintiff.
[Citation.]”). In Lichter, however, a divided supreme court indicated that reading Relf to suggest that
subsection (b) applied only where the plaintiff was aware of the defendant’s death at the time of
commencement of the action was “reading Relf far too broadly.” Lichter, 2023 IL 128468, ¶ 26. But see
id. ¶¶ 50, 51 (Rochford, J., dissenting, joined by Overstreet, J.) (“[d]isagree[ing]” with the majority’s
statement, as “[d]efendant is reading it to mean exactly what it says,” but nevertheless finding that the
Relf court spoke too broadly in that subsection (b) would apply so long as the plaintiff became aware of
the death within six months of the expiration of the statute of limitations). As the certified question
concerns only subsection (c), however, we have no need to reconcile the supreme court’s changing
approach to its interpretation of subsection (b).
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¶ 16 As highlighted above, section 13-209(c) uses the term “personal representative” multiple
times, and such usage is significant. Prior to 1997, section 13-209 provided only for actions
against a defendant’s “personal representative” in the case of his or her death. See 735 ILCS
5/13-209(b), (c) (West 1996). Similarly, section 13-209 provided for actions to be filed by a
plaintiff’s “representative” in the case of his or her death. See id. § 13-209(a). Section 13-209
made no reference to a “special representative.” This term was added to subsections (a) and
(b) in 1997, and in each case, the statute allowed for the appointment of a “special
representative” if no petition for letters of office for the decedent’s estate had been filed. See
735 ILCS 5/13-209(a)(2), (b)(2) (West 2020). The term was not added to subsection (c), which
continues to provide only for actions against a defendant’s “personal representative.” Id. § 13-
209(c). Our supreme court has explained that the difference in terminology between a
“personal representative” and a “special representative” has legal significance, and the terms
are not interchangeable. See Relf, 2013 IL 114925, ¶ 34. Specifically, a “personal
representative” is appointed where petitions for letters of office for the decedent’s estate have
been filed, while a “special representative” is appointed where no petition for letters of office
has been filed. Id.¶ 17 In this case, Carrillo was appointed as the “personal representative” of decedent’s estate
pursuant to section 13-209(c), despite the fact that no petition for letters of office was filed for
decedent’s estate. This does not comport with our supreme court’s holding in Relf, in which
the supreme court made clear that “a ‘personal representative’ means one appointed pursuant
to a petition for issuance of letters of office.” Relf, 2013 IL 114925, ¶ 36.
¶ 18 The Relf court went to great lengths to explain the difference between a “special
representative” and a “personal representative.” The supreme court noted that the Code did not
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define the term “personal representative” with respect to section 13-209, and therefore turned
to other sources to determine its meaning. Id. ¶ 32. First, the supreme court observed that
dictionary definitions of the term indicated that “ ‘personal representative’ encompasses both
of two basic categories of individuals: executors, who are named in the decedent’s will, and
administrators, who are appointed where the decedent is intestate or else left a will but has no
executor.” Id. The supreme court then examined the Probate Act of 1975 (755 ILCS 5/1-1 et
seq. (West 2010)), which revealed that “executors and administrators share a common trait.
They are both officers of the court to whom letters of office are issued.” Relf, 2013 IL 114925,
¶ 33. Moreover, “[i]ssuance of letters of office would therefore appear to be a hallmark of
‘personal representatives’ as that term is commonly understood when applied to situations
involving estates which must be settled and distributed following a person’s death.” Id.¶ 19 The Relf court found that the terminology used in section 13-209 “is consistent with this
usage.” Id. ¶ 34. The supreme court noted that where the legislature had chosen to use different
language in statutory provisions, it was presumed that different meanings were intended, and
“the difference in meaning here is apparent.” Id. The supreme court found that “ ‘[s]pecial
representatives’ are referenced only with respect to situations where ‘no petition for letters of
office for the decedent’s estate has been filed.’ [Citation.] In all other situations, which by
inference must be whenever petitions for letters of office have been filed, the statute refers to
‘representatives’ or ‘personal representatives.’ ” (Emphasis in original.) Id. The supreme court
found no merit to the plaintiff’s contention that the two terms should be used interchangeably,
as such an approach was “incompatible with the history of section 13-209.” Id. ¶ 35. The
supreme court explained that the legislature had added the term “special representative” in
1997, and found that “[b]y adding the new term ‘special representative’ and expressly limiting
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use of ‘special representatives’ to situations where no petition for letters of office had been
filed, the General Assembly must have understood the preexisting statutory term ‘personal
representatives’ as referring to individuals to whom letters of office had been issued. No other
interpretation of the statutory change is tenable.” Id. The supreme court also noted that
proceedings under subsection (c) “us[ed] the time when letters of office issued as a point of
demarcation regarding the scope of the estate’s liability,” which would “serve no purpose”
unless “personal representative” was intended to refer specifically to an individual appointed
pursuant to the issuance of letters of office. Id. ¶ 36.
¶ 20 The Relf court further observed that such an interpretation was consistent with other
statutes involving a party’s death, namely, sections 2-1008(b) and 6-139 of the Code (735 ILCS
5/2-1008(b), 6-139 (West 2010)). Relf, 2013 IL 114925, ¶¶ 37, 40. Under both statutes,
reference to the decedent’s “personal representative” was used only when a petition for letters
of office had been filed. Id. ¶¶ 37, 40. Indeed, section 2-1008(b) expressly contained a
provision providing for the substitution of a “personal representative” in place of the “special
representative” upon issuance of a petition for letters of office; the supreme court noted that
“[i]f the terms ‘personal representatives’ and ‘special representatives’ were synonymous and
freely interchangeable, this provision would make no sense.” Id. ¶ 38. Case law interpreting
section 2-1008(b) further supported the distinction between the two. Id. ¶ 44.
¶ 21 Similarly, in Lichter, the supreme court recently reaffirmed the distinction between
“personal representatives” and “special representatives.” While that case primarily concerned
interpretation of subsection (b)(2), in its analysis, the supreme court consistently distinguished
between the appointment of a “personal representative” under subsection (c) and the
appointment of a “special representative” under subsection (b)(2). See, e.g., Lichter, 2023 IL
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128468, ¶¶ 17, 20, 22, 28; see also id. ¶ 6 (noting that “[n]o letters of office were ever issued
to open an estate on [the decedent’s] behalf, and thus, there was no personal representative to
defend the lawsuit”). While the Lichter court ultimately found that the appointment of a
“special representative” under subsection (b)(2) was permissible despite the fact that the
plaintiff did not discover the defendant’s death until after the expiration of the limitations
period, the supreme court’s analysis did not in any way remove the distinction between the two
terms, nor did it expand the definition of “personal representative” for purposes of subsection
(c). See id. ¶ 35 (while the circuit court dismissed the complaint based on subsection (c)’s
requirement of a “personal representative,” the supreme court reversed upon finding that
appointment of a “special representative” was permitted under subsection (b)(2)).
¶ 22 In this case, as noted, there is no dispute that no estate was ever opened on behalf of
decedent, and that Carrillo was appointed as decedent’s “personal representative” pursuant to
section 13-209(c). As explained by our supreme court in Relf, therefore, Carrillo’s appointment
was impermissible, as she was not eligible to be named as a “personal representative” in the
absence of issuance of a petition for letters of office. We accordingly must answer the circuit
court’s certified question in the negative.
¶ 23 We briefly note that plaintiff, for the first time on appeal, contends that section 13-
209(b)(2) would have provided an alternative basis for permitting Carrillo’s appointment as
“personal representative.” We decline to consider this argument, which is based on the
appellate decision in Lichter, subsequently affirmed by the supreme court. First, plaintiff
never relied on subsection (b)(2) before the circuit court, and a party may not raise an issue
for the first time on appeal; indeed, plaintiff even specifically cited subsection (c) in his
motion to appoint Carrillo. See Vantage Hospitality Group, Inc. v. Q Ill Development, LLC,
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2016 IL App (4th) 160271, ¶ 49 (“It has long been the law of the State of Illinois that a party
who fails to make an argument in the trial court forfeits the opportunity to do so on appeal.”).
Second, Lichter involved the appointment of a “special representative,” not a “personal
representative,” which, as explained above, are not synonymous terms, so plaintiff’s reliance
on Lichter is questionable at best. Finally—and most importantly—the scope of subsection
(b)(2) is not before us, as the question certified by the circuit court concerns only subsection
(c). See Rozsavolgyi v. City of Aurora, 2017 IL 121048, ¶ 25 (the scope of review under Rule
308 is generally limited to the certified question). We therefore express no opinion as to the
availability of subsection (b)(2) to the instant litigation, and similarly do not express any
opinion as to plaintiff’s suggestion that the naming of Carrillo as “personal representative”
should be considered a “misnomer.”
¶ 24 CONCLUSION
¶ 25 For the reasons set forth above, we answer the certified question in the negative. Where
no petition for letters of office has been issued on behalf of a deceased defendant, the
plaintiff’s counsel’s legal secretary cannot be appointed as the “personal representative” of
the decedent’s estate for purposes of section 13-209(c) of the Code.
¶ 26 Certified question answered.
11